Fraudulent Bankruptcy: Analysis of Supreme Court Judgment no. 34811 of 2024

The recent intervention by the Supreme Court of Cassation, with judgment no. 34811 of September 16, 2024, has highlighted crucial aspects of fraudulent bankruptcy, particularly regarding the figure of the de facto director. The judgment focuses on the case of A.A., convicted of documentary fraudulent bankruptcy due to insufficient accounting records, emphasizing the criminal liabilities related to corporate management.

Context of the Judgment

The Court of Appeal of Milan had confirmed the conviction of A.A. for having removed the accounting records of the company ERRE 8 Srl, thereby worsening the position of creditors and compromising the verification operations by the bankruptcy trustee. In particular, the Court of Cassation emphasized that the subjective element of the crime of documentary fraudulent bankruptcy is constituted by the awareness and will not to keep accounting records, making the reconstruction of assets impossible.

The Court reiterated that irregular management of accounting records constitutes a criminally relevant behavior.

Grounds for Appeal and Court's Responses

A.A. filed an appeal based on four main grounds, all rejected by the Court. Among the challenges, the defendant argued for the inadmissibility of witness statements, the lack of certain proof of his role as de facto director, and requested general mitigating circumstances. However, the Court of Cassation deemed these grounds unfounded, highlighting the admissibility of the evidence collected and the coherence of the reasoning in the appealed judgment.

• The testimony of C.C. was considered valid despite objections regarding her status as a witness.
• Documentary evidence confirmed A.A.'s responsibility in corporate management.
• The request for general mitigating circumstances was rejected, as there were no positive elements.

Legal Implications and Conclusions

The analyzed judgment offers an important reflection on the responsibility of directors in cases of fraudulent bankruptcy. It emphasizes that a de facto director, like A.A., can incur criminal liability even in the absence of formal recognition of their role. The legal consequences are significant, as non-compliance with accounting regulations and irregular management of records can lead to severe penalties. In conclusion, the Court of Cassation confirmed the need for strict adherence to legal provisions regarding bankruptcy, reiterating the principle that every director must ensure the transparency and accuracy of accounting records.